Whitney v. Leipziger

DRAPEAU, J.* Appellant Whitney, a general contractor, entered into a written agreement with respondent Leipziger under which Whitney was to act as the “managing supervisor and responsible managing officer ... in connection with the subdivision and development of the hereinafter described tracts and the construction of houses thereon, and that plaintiff would be employed upon a monthly salary in the sum of $866.66 per month, plus a certain incentive bonus on each tract, to be computed on the basis of the net profits derived [520]from the sale of said houses. ’ ’ Appellant alleged and testified that he left an advantageous position to accept such employment.

It is alleged that, from September 11, 1954, to January 6, 1956, plaintiff performed his duties pursuant to this agreement, at which time defendants wrongfully terminated plaintiff’s appointment; that it would have taken approximately two years to complete the contemplated work; that the defendants “informed plaintiff that they would pay no bonus whatsoever.” Whitney claimed damages by way of loss of wages in the sum of $20,800, and loss of bonuses on the amount of $75,568. In other counts plaintiff asked for an accounting, and for declaratory relief.

The defendants deny that “plaintiff is entitled to redress . . . for any matter or thing alleged in said second amended complaint;” admit executing the contract of employment, plaintiff’s previous employment, and his performance of certain duties during the period in question. It is alleged that on January 6, 1956, “defendant Foremost notified plaintiff that his services would be no longer required by reason of plaintiff’s failure to properly perform his services; that plaintiff thereupon requested that he be permitted to remain in the employ of said defendants for a period of two weeks longer, to assist said defendants in completing those of the 120 houses on said Tract 20732,” to which continuation defendants agreed, but that, nevertheless, “on January 9, 1956, plaintiff did not return to work, but accepted a position with another company.”

The answer also states that, “defendant Foremost advised plaintiff on January 6, 1956, that notwithstanding his failure to properly perform his services for it, said company nevertheless would pay him an incentive bonus of 3%% on the net profit of the 120 houses, ... as soon as said houses were completed and sold and the certified public accountant . . . had completed his audit thereof,” but that at the commencement of this action, not all of the houses had been sold and the accountant was not able to ascertain the net profits realized. In a later paragraph, defendants again ‘ ‘ allege that defendant Foremost agreed to pay a bonus of 3%% on net profits,” but that such profits had not yet been ascertained.